ISSUE: In a juvenile probation violation hearing where revocation of probation is a possible punishment, is the judge required to conduct a Juv.R. 29 colloquy with the offender before accepting his or her waiver of counsel or admission of the claimed probation violation?

BACKGROUND: Ohio Juvenile Rule 29 requires that a judge presiding over the adjudication of a juvenile offender must conduct a detailed colloquy (question and answer discussion) with the offender before allowing the child to waive the right to be represented by an attorney or to admit to a charged offense. In this case, the Court is asked to decide whether the requirements of Juv.R. 29 apply to juvenile probation violation hearings at which the juvenile faces revocation of probation as a possible punishment.

In June 2006, a 13-year-old identified as L.A.B. appeared at the Summit County Juvenile Court for a probation violation hearing. The judge began by advising L.A.B. that he had a right to a court-paid attorney and asked if he wanted to proceed with or without counsel. After L.A.B. stated that he would proceed without an attorney, the court notified him of the potential penalty he could face if he was found guilty of violating probation, which was commitment to the Ohio Youth Commission (OYC) for from one year to until his 21st birthday. When L.A.B. indicated that he understood the possible penalty, and that by admitting a probation violation he would give up his rights to a trial at which he could challenge the state’s case and present his own evidence, the court accepted his admission and proceeded immediately to commit him to the OYC for a minimum of one year and a maximum of until he reached the age of 21.

L.A.B. subsequently appealed, arguing that the trial judge in his case did not comply with Juv.R. 29, which requires that, before accepting a juvenile offender’s waiver of an attorney or admission, a juvenile court must conduct a colloquy in which it determines that the offender understands the potential penalty for a violation and the trial rights he would give up by admitting his guilt. The Ninth District Court of Appeals rejected L.A.B.’s claims, holding that the requirements of Juv.R. 29 do not apply to probation violation hearings, which are governed by a different rule, Juv.R. 35(B). The Ninth District subsequently certified that its ruling on the applicability of Juv.R. 29 was in conflict with a 2007 decision of the Seventh District Court of Appeals, In Re Lohr. The Supreme Court has agreed to review the case to resolve the conflict between appellate districts.

Attorneys for L.A.B. argue that a probation violation hearing is an “adjudicatory hearing” covered by Juv.R. 29 because it is a proceeding “initiated by a complaint that sets forth allegations that form the basis for juvenile court jurisdiction” and results in a ruling that a child has behaved in a “delinquent” manner. Because the trial judge in his case did not conduct the colloquy required by Juv.R. 29 before accepting L.A.B.’s waiver of counsel and admission of a probation violation, they contend, the hearing was not lawfully conducted and therefore his adjudication and sentence must be overturned.

Arguing on behalf of the state, the Summit County prosecutor’s office points out that the Juvenile Rules set forth different procedural requirements for “adjudicatory hearings” (in Juv.R. 29), for “dispositional hearings” (in Juv.R. 34) and for “proceedings after judgment” – the category that includes probation revocation hearings – (in Juv.R. 35). Because the trial court in this case complied with Juv.R. 35, and nothing in Juv.R. 35 extends the procedural requirements for “adjudicatory hearings” to probation revocation proceedings, they say, the trial court did not err by failing to go through the full waiver-of-counsel colloquy required by Juv.R. 29 in this case.

Contacts
Philip B. Bogdanoff, 330.643.2791, for the state and Summit County prosecutor’s office.

Is Supervising Special Needs Passengers an Integral
Part of School Bus Driver’s ‘Operation of Vehicle?’

Marlington Local School District et al. v. Jane Doe, Individually and as Next Friend of Holly Roe, a Minor, et al., Case no. 2007-1304
5th District Cout of Appeals (Stark County)

ISSUE: Does the failure of a school bus driver to control and manage the behavior of special needs students while they are passengers on her bus fall within a statutory exception to sovereign immunity for a government employee’s “negligent operation of a motor vehicle?”

BACKGROUND: In this case, the family of a 10-year-old special needs student identified as Holly Roe seeks to recover civil damages from the Marlington Local School District for physical and emotional injuries Holly suffered as a result of being sexually assaulted on multiple occasions by another special needs student while they were riding on a district school bus. The assaults, which went on over a period of several months, were undetected by the bus driver, who allowed her passengers to be out of their seats and out of her range of vision in violation of state and local safety rules.

Acting on Holly’s behalf, her mother filed suit against the school district in Stark County Court of Common Pleas. The district filed a motion for summary judgment based on R.C. 2744.02, which grants political subdivisions immunity from civil liability for the negligent acts or omissions of public employees in the performance of their official duties. Holly’s family opposed the motion, arguing that her injuries fell under an exception to immunity for damages arising from a public employee’s “negligent operation of a motor vehicle.” The trial court denied summary judgment in favor of the school district, and allowed the suit to proceed.

The school district appealed. On review, the Fifth District Court of Appeals reversed the trial court, holding that the school district was immune from liability under R.C. 2744.02 and therefore was entitled to summary judgment. In its decision, the court of appeals noted that the sovereign immunity statute does not define what actions constitute the “operation” of a motor vehicle, but held that prior court decisions have limited the exception to immunity to injuries caused by the actual physical driving, stopping or mechanical operation of the vehicle and not to other conduct by the driver.

Attorneys for Holly’s family sought and were granted Supreme Court review of the Fifth District’s ruling. They point to state and local rules that mandate special training and impose special requirements on persons who operate school buses that are not applicable to drivers of other types of government vehicles. They point to specific pupil transportation rules that require school bus drivers not only to obey traffic laws and employ safety procedures in taking on and letting off students, but also require drivers to manage and control the conduct of bus passengers in a manner that protects other passengers from injury.

In this case, they argue, the bus driver failed to follow state and local regulations that require students to remain in their seats when the bus is moving and that require drivers transporting special needs students to keep all passengers within the driver’s field of vision at all times. They contend that observing these passenger management and control requirements is an integral part of a school bus driver’s duties in “operating” the bus, and urge the Court to hold that the errors and omissions of the driver in this case fell within the exception to sovereign immunity for “negligent operation” of her vehicle. Amicus curiae (friend of the court) briefs supporting Holly’s position have been filed by organizations including the Children’s Defense Fund, the Ohio Legal Rights Service and the Ohio Coalition for the Education of Children with Disabilities.

Attorneys for the school district, supported by an amicus brief filed by the Ohio School Boards Association, urge the Court to affirm the ruling of the Fifth District. They argue that the legislature’s intent in enacting R.C. 2744.02 was to protect taxpayer-financed political subdivisions, including school districts, from the potentially ruinous costs of civil lawsuits. They assert that the exceptions to immunity set forth in other parts of the statute, including the exception for negligent operation of motor vehicles, should be interpreted narrowly in light of that legislative intent, and that lawsuits not related to the actual driving of a public vehicle should not be permitted.

In Deciding if Retrial Constitutes Double Jeopardy,
Must Courts Apply Same Rule for Bench, Jury Trials?

ISSUE: When a criminal defendant appeals the sufficiency of the evidence presented at trial to support his conviction, and a court of appeals finds that some of the evidence admitted by the trial court should have been excluded, in deciding whether a new trial would subject the defendant to double jeopardy, should the reviewing court apply the same rule of law regardless of whether the defendant was convicted in a bench trial or a jury trial?

BACKGROUND: In a 1997 decision, State v. Lovejoy, the Supreme Court of Ohio held that when a criminal defendant appeals the sufficiency of the evidence presented at trial to support his conviction, and a court of appeals finds that some of the evidence admitted by the trial court should have been excluded, the appellate court should then proceed to review only the portion of the trial evidence that was legally admissible. Based on that review, Lovejoy required the appellate court to determine whether a) the admissible evidence could have been sufficient to support a conviction, in which case the defendant must face a new trial; or b) the admissible evidence presented at trial was legally insufficient to support a conviction, in which case the charges against the defendant must be dismissed because retrying the defendant would violate his constitutional protection against double jeopardy.

In this case, Samuel Brewer was charged with multiple offenses arising from his alleged sexual contact with two minors. He was convicted by a jury on a single count of gross sexual imposition, for which he was sentenced to two years in prison and classified as a sexually oriented offender. Brewer appealed his conviction to the Eighth District Court of Appeals, asserting that (1) the trial judge had violated his fair trial rights by allowing the state to introduce inadmissible hearsay evidence that prejudiced the jury against him; and (2) the admissible evidence presented against him at trial was not legally sufficient to support his conviction for gross sexual imposition.

The Eighth District ruled that the trial court had erred by allowing the prosecutor to introduce prejudicial hearsay evidence and remanded the case for a new trial, dismissing Brewer’s challenge to the sufficiency of the evidence as moot. Brewer appealed the dismissal of his sufficiency claim to the Supreme Court, which reversed and remanded the case to the Eighth District with instructions to hear and decide the sufficiency issue. The Eighth District subsequently reviewed all of the evidence presented at Brewer’s trial – including the hearsay testimony that it had earlier held inadmissible – and ruled that the totality of the evidence including the hearsay testimony was sufficient to support his conviction. Brewer sought reconsideration of that ruling, arguing that Lovejoy required the appellate court to exclude the hearsay testimony from its review of the evidence and to base its sufficiency ruling solely on the admissible evidence presented at trial. In its decision denying Brewer’s motion for rehearing, the Eighth District held that because the defendant in Lovejoy was convicted in a bench trial rather than by a jury, Lovejoy’s requirement that inadmissible evidence be excluded from a sufficiency review applied only to cases involving bench trials and thus did not apply to Brewer’s case.

Brewer sought and was granted Supreme Court review of the Eighth District’s ruling. His attorneys note that neither the Eighth District’s decision nor the state’s pleadings in this case cited any language in this Court’s 1997 Lovejoy decision that limited its application to bench trials. They point out that the evidentiary standard that must be met to support a defendant’s conviction is no different in bench trials than in jury trials, and argue that there is no legal or logical basis for the Eighth District’s holding that inadmissible trial evidence must be excluded from sufficiency reviews in bench trials, but not from sufficiency reviews in jury cases.

Defense counsel acknowledge the Eighth District’s observation that the Ohio sufficiency review standard established in Lovejoy is more favorable to defendants than the standard set by the U.S. Supreme Court for federal sufficiency reviews in Lockhart v. Nelson (1988). They note that this Court issued its decision in Lovejoy nine years after Lockhart set the federal standard, and point to several other decisions in which the Supreme Court of Ohio has held that various provisions of the state constitution provide greater protection of individual rights than is granted by U.S. Supreme Court decisions interpreting parallel provisions of the federal constitution.

Attorneys for the state suggest that this case presents the Court with an opportunity to revisit the issue of what evidence must be reviewed by appellate courts in cases involving challenges to the sufficiency of trial evidence. They urge the Court to adopt the U.S. Supreme Court’s position in Lockhart that a defendant’s double jeopardy rights are not infringed by undergoing a new trial so long as any evidence presented at his original trial, even though some of that evidence is later ruled inadmissible on appeal, was sufficient to support a conviction on the charged offense.

They cite court decisions adopting the Lockhart standard in a majority of states that have ruled on the issue. They also argue that Ohio’s Lovejoy rule forces prosecutors to second-guess the trial judge’s rulings on close evidentiary issues and “overtry” cases by introducing redundant evidence of each element of a crime to avoid having the defendant go free if an appellate court should later exclude a key piece of the state’s evidence.

Contacts
Cullen Sweeney, 216.443.3660, for Samuel Brewer.

Jon W. Oebker, 216.443.8146, for the state and Cuyahoga County prosecutor’s office.

ISSUE: In order to convict a defendant who is charged with knowingly possessing or carrying a firearm while under indictment for a drug-related offense, must the state prove that at the time he possessed a gun the defendant had been notified of his indictment on the drug charge?

BACKGROUND: R.C. 2923.13(A)(3) provides in part that “no person shall knowingly acquire, have, carry or use any firearm or dangerous ordnance if... the person is under indictment for or has been convicted of any offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse...”

In this case, Howard Clay of Cleveland was charged and convicted on two counts of felonious assault with firearm specifications and one count of having a weapon while under disability in violation of R.C. 2923.13(A)(3). At trial, the state produced evidence that Clay had been indicted by a Cuyahoga County grand jury on drug trafficking charges several months before the shooting incident. The trial court found Clay guilty on all counts and sentenced him to eight years in prison.

Clay appealed his conviction and sentence for the weapons possession charge to the Eighth District Court of Appeals, arguing that although the grand jury had indicted him on drug charges before the date of the shooting incident, Clay was not notified of the indictment or arraigned on the drug charges until 10 days after the shooting. The Eighth District affirmed the ruling of the trial court, holding that a conviction on the firearm possession charge required only a showing that the defendant was in possession of a gun after the date of his indictment on drug charges. The Eighth District certified, however, that its ruling on this issue was in conflict with a decision of the Sixth District in a similar case. The Supreme Court agreed to hear argument to resolve the conflict between appellate districts.

Attorneys for Clay argue that the plain language of the weapons statute requires the state to prove that a defendant “knowingly” committed both essential elements of the charged offense: (1) that he knowingly possessed or used a firearm and (2) that he did so at a time when he knew he was under indictment on a drug charge. In this case, they contend, Clay’s weapons charge conviction and sentence must be reversed because the state presented no evidence that at the time of the shooting Clay was aware of the drug possession indictment pending against him.

Arguing on behalf of the state, attorneys from the Cuyahoga County prosecutor’s office contend that the wording of the weapons-under-disability statute requires proof that a defendant acted “knowingly” only with regard to the element that he possessed or used a firearm. They assert that the absence of any similar language in the following sub-paragraphs of the law that define various “disabilities” under which possession of a weapon is prohibited indicates the legislature’s intention to make those elements matters of “strict liability,” i.e., factual conditions that require no proof of a specific guilty mental state such as “knowingly” or “recklessly.”

Contacts
Cullen Sweeney, 216.443.3660, for Howard Clay.

Thorin O. Freeman, 216.443.7800, for the state and Cuyahoga County prosecutor’s office.

These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered
by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to
review the case file available in the Supreme Court Clerk's
Office (614.387.9530), or to contact counsel of record.